Your end of the bargain: second-hand goods, injury and liability

There are many benefits to second-hand shopping — it can be good for your wallet, good for your retro sense of style and good for the environment. But it’s not without risk. Previous owners may have failed to properly install, maintain or service a product. Or they may fail to warn you about an already existing safety defect. When a second-hand purchase results in an injury, who is responsible?

Sellers' responsibilities and buyers' rights

Sellers should provide a clear and accurate description of the second-hand goods for sale, including their condition and age. They should also point out any damage or defects.

The Australian Consumer Law (ACL) has consumer guarantees that require that all goods — including second-hand goods — be of ‘acceptable quality’. This means that they’re:

  • fit for all the purposes for which goods of that kind are commonly supplied
  • acceptable in appearance and finish
  • free from defects
  • safe; and
  • durable.

The ACL does not apply when you purchase an item from a private individual or seller, like on eBay or Gumtree. So, before you buy from a private seller, make sure you read their refund and returns policy if they have one. Larger websites such as eBay and Gumtree provide options for contacting the seller to complain or negotiate a solution if the product is faulty.

Safety standards, regulations and labels

There are mandatory safety standards when it comes to certain products like exercise equipment, toys, and blinds, curtains and window fittings. It’s an offence to sell goods that don’t comply with these standards.

Many goods are regulated by specific legislation, for example:

  • medical devices, pharmaceuticals and other therapeutic goods are regulated by the Therapeutic Goods Act 1989 and the Therapeutic Goods Administration (TGA)
  • motor vehicles are regulated by the Motor Vehicles Standards Act 1989 and state and territory legislation.

Safety labelling varies between states and territories but, as a rule, second-hand electrical goods must be properly labelled with information about the item’s inspection, testing and compliancy.

Injury and liability

When it comes to injuries caused by second-hand purchases, liability is assessed on a case-by-case basis. The definition of ‘goods’ under the ACL includes second-hand goods, therefore retailers, manufacturers and/or importers may be liable to compensate consumers if they supply a faulty product that causes an injury.

Sometimes it can be difficult to prove liability because second-hand products may have been tampered with, misused or damaged by the previous owner. The retailer, manufacturer and/or importer may have a defence if they can prove that the safety defect did not exist at the time the goods were supplied to the original owner.

If you’ve been injured as a result of a second-hand purchase, make sure you:

  • seek medical treatment and tell your practitioners how you were injured
  • photograph your injuries, especially burns, cuts, bruises, etc.
  • keep records of medical and out-of-pocket expenses
  • notify the supplier of the fault
  • retain your proof of purchase and, where possible, the full product description as it was advertised or displayed for sale
  • keep the product in its ‘faulty’ state and take good photos, and
  •  seek legal advice.

 DO NOT return the product to the supplier, manufacturer or retailer. It may be necessary to obtain an expert’s opinion in relation to the fault of the product.

Safeguards

There are several ways you can enjoy the fun of second-hand shopping while safeguarding yourself and your purchases. Here are our top tips:

  • research and read consumer reviews
  • where possible, try before you buy (for example, test-drive a second-hand car)
  • ask questions about the product’s age, condition, use, maintenance and storage
  • look closely for signs of damage, and ask if there have been any problems or issues
  • if you’re buying online, don’t be afraid to ask for more photos
  • request product information, labelling, instructions and installation manuals
  • keep copies of your communication with the seller, and
  • buy reputable brands from reputable sources.

With a little know-how, you can minimise your risk of injury when buying pre-loved products. Get what you paid for — not more than you bargained for.

Trang van Heugten is a senior associate in Maurice Blackburn's Melbourne office.

TOPIC: Public safety
RELATED LEGAL SERVICES: Public liability

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Trang van Heugten

Maurice Blackburn Melbourne
Trang van Heugten is a Senior Associate who practices exclusively in the Public Liability and Faulty Products department at Maurice Blackburn, based in Melbourne. She is also a Law Institute of Victoria Personal Injury Accredited Specialist who has a particular interest in bringing claims for the survivors of childhood sexual abuse. Trang is specially trained in trauma informed practice which ensures she works with clients to access justice in a way that recognises the complex trauma they have suffered. Trang has substantial experience across a wide range of public liability and faulty product matters, including successfully representing people who have been injured after landlords, councils, schools, shops, manufacturers and other businesses and organisations failed to take reasonable care to members of the public. Some of Trang's successful cases include a: tenant who fell five metres to the ground when the balustrade of his rented property collapsed disabled man who sustained severe burns to over half of his body when he was trapped in a shower facility of a nursing home homeowner who free fell several metres in the defective lift which was installed in her home shopper who was almost crushed by a defective shopping trolley while travelling on an travelator, and mum who sustained serious back injuries when she was crushed under the weight of unsecured soccer goal posts Trang also has substantial experience across a wide range of commercial and civil litigation.                 Before joining the Public Liability department, Trang worked as a senior lawyer for Maurice Blackburn Commercial, assisting in the conduct of a large Supreme Court action between pharmaceutical corporations. Trang was the Associate to Mr Justice Peter Buchanan of the Victorian Court of Appeal from 2000 to 2002 and worked as a lawyer at another leading law firm from 2002 to 2008. Trang graduated from La Trobe University with a Bachelor of Laws (Hons) and was admitted to practice in 1999. She also holds a Bachelor of Science (Psychology) from the University of Melbourne. Trang is a member of the Law Institute of Victoria. She speaks fluent Vietnamese and is actively involved in the Vietnamese community. ...

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